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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, February 24, 2010

Circuit remands age discrimination case for trial

You can prove age discrimination in employment through circumstantial evidence. Unless a decisionmaker makes an ageist comment in the workplace, you are going to have to show pretext, i.e., the employer's reasons for terminating your termination are false and offered in bad faith. This was illustrated in a recent decision of the Court of Appeals.

Under a recent Supreme Court ruling, Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009), age discrimination plaintiffs have to show that age was the "but for" reason behind their termination. This test overrides the Second Circuit's prior standard allowing plaintiffs to win if discrimination "was motivated at least in part by age discrimination." Plaintiff satisfies the Supreme Court's more burdensome requirement.

JetBlue argued that Gorzynski was fired for poor job performance. But the jury can reject each of the particulars, the Court of Appeals (Calabresi, Walker and Wesley) holds. True, she was made aware of an employee complaint against her, normally a good starting point in dismissing the case. But supervisor Thro did not bring that complaint to her attention until right after plaintiff complained about discrimination in enforcing airline policy. "It is unclear whether Thro would have brought Cruz's complaint to her attention at all had she not raised her concerns about discrimination. And this is especially so given that what Cruz had said was not serious enough for Thro to record it independently as part of any formal disciplinary process."

More pretext is found in plaintiff's negative performance evaluation, written by the same guy who is accused of committing much of the age discrimination against her. He also wrote it after supervising her for only a week, so he barely knew her; the negative review is hardly reliable. And, the evaluator gave a positive review to a much younger employee who had all sorts of disciplinary infractions. While the district court in dismissing the case noted that plaintiff was on probation, it was the suspicious performance review that triggered the probation in the first place. The Court of Appeals also notes that a specific incident of plaintiff's alleged misconduct was a sufficiently flimsy basis to justify her termination since her accuser was "out to get" her and the company conducted a "questionable at best" investigation into this incident. It also seems that Gorzynski may not even have done anything wrong in connection with that incident.

There is some affirmative evidence of age discrimination, specifically that younger employees were not disciplined for violating numerous company policies. The Court also notes that "Gorzynski presents a list of policies that younger crewmembers, although not of her same position, were allowed to break with impunity." Management argued that these other workers were not comparable as a matter of law because they were lower-level employees and she was a supervisor. The Second Circuit says that plaintiff does not have to be the same rank as these workers to draw the inference of discrimination. Last, but not least, was a supervisor's off-hand comment that plaintiff reminded him of his aunt, who was in her eighties.